Sie sind auf Seite 1von 4



Submitted to:
Submitted by:
Dr. Rabindra Pathak
Saurav Mahto
Faculty ,Comparative constitution




Briefly analyze the central theme of Joseph Raz's paper "Rule of Law and its
In this article Joseph Raz has analyzed the ideal of the rule of law and also the common fallacy
concerning the rule of law. Firstly he says that the function of the legislature in a free society
under the Rule of Law is to create and maintain the conditions which will uphold the dignity of
man as an individual. The rule of law is a political ideal which a legal system may lack or may
possess to a greater or lesser degree. He insisted that the rule of law is just one of the virtues
which a legal system may possess and by which it is to be judged. He clearly states that it is not
to be confused with democracy, justice, human rights of any kind or respect for persons or for the
dignity of man. A non-democratic legal system, based on the denial of human rights, on
extensive poverty, on racial segregation, sexual inequalities, and religious persecution may, in
principle, conform to the requirements of the rule of law better than any of the legal systems of
the more enlightened Western democracies. It will be an immeasurably worse legal system, but it
will excel in one respect : in its conformity to the rule of law.
The ideal of the rule of law is often expressed by the phrase government by law and not by
men. The doctrine of the rule of law derives: the law must be capable of guiding the behaviour
of its subjects. It says nothing about how the law is to be made: by tyrants, democratic majorities,
or any other way . It says nothing about fundamental rights, about equality, or justice. It may
even be thought that this version of the doctrine is formal to the extent that it is almost devoid of
content. Most of the requirements which were associated with the rule of law before it came to
signify all the virtues of the state can be derived from this one basic idea.
Then the author discusses about the important principles of rule of law :
All laws should be prospective, open, and clear which means it should not be retroactive , it
should be adequately publicized and it should not be ambiguous or vague; Laws should be

relatively stable : They should not be changed too often; The making of particular laws
(particular legal orders) should be guided by open, stable, clear, and general rules; The
independence of the judiciary must be guaranteed; The principles of natural justice must be
observed; The courts should have review powers over the implementation of the other principles;
The courts should be easily accessible; The discretion of the crime-preventing agencies should
not be allowed to pervert the law.
Further he says that conformity to the rule of law is a virtue, but only one of the many virtues a
legal system should possess. The rule of law is often rightly contrasted with arbitrary power.
Arbitrary power is broader than the rule of law. Many forms of arbitrary rule are compatible with
the rule of law. A ruler can promote general rules based on whim or self-interest, etc., without
offending against the rule of law. But certainly many of the more common manifestations of
arbitrary power run foul of the rule of law. Conformity to the rule of law is a matter of degree.
Complete conformity is impossible (some vagueness is inescapable) and maximal possible
conformity is on the whole undesirable (some controlled administrative discretion is better than
Then the author has also discussed the pitfalls in which he says that since the rule of law is just
one of the virtues the law should possess, it is to be expected that it possesses no more than
prima facie force. It has always to be balanced against competing claims of other values Conflict
between the rule of law and other values is just what is to be expected. Conformity to the rule of
law is a matter of degree, and though, other things being equal, the greater the conformity the
betterother things are rarely equal. In considering the relation between the rule of law and
other values the law should serve, it is of particular importance to remember that the rule of law
is essentially a negative value. Conformity to it makes the law a good instrument for achieving
certain goals, but conformity to the rule of law is not itself an ultimate goal. This subservient role
of the doctrine shows both its power and its limitations. On the one hand, if the pursuit of certain
goals is entirely incompatible with the rule of law, then these goals should not be pursued by
legal means. But on the other hand one should be wary of disqualifying the legal pursuit of major
social goals in the name of the rule of law. After all, the rule of law is meant to enable the law to
promote social good, and should not be lightly used to show that it should not do so. Sacrificing
too many social goals on the altar of the rule of law may make the law barren and empty.